Bank of Baroda and Gupta-linked companies in an ‘unhappy marriage’
It is an unhappy marriage and one of the parties is holding out for a divorce.
That is how Judge Ntendeya Mavundla described the relationship between the Bank of Baroda and 13 Gupta-linked companies. He used this imagery when he briefly addressed Advocate Arthur Cook SC on Thursday in the High Court in Pretoria.
Cook represented the Gupta-linked companies in their urgent application seeking to stop the Bank of Baroda from closing down its South African operations.
Advocate Azhar Bham SC‚ on behalf of Baroda‚ later expanded on the wedding metaphor and accused the Gupta-linked companies of holding out for “their own convenience”.
The application started out on behalf of 20 Gupta-linked companies‚ but was reduced to 19. On Thursday it was reduced to 13‚ because six of the applicants are in business rescue.
Nedbank informed Baroda at the end of January that it would be cutting ties with the bank within three months. That means that from April 1‚ Baroda will not have banking facilities with Nedbank.
Baroda in turn said it would not accept any deposits into Baroda accounts from March 1‚ because it wanted to wind down its affairs before the end of its agreement with Nedbank.
Baroda has a correspondent banking relationship with Nedbank in South Africa. This means Baroda relies on Nedbank to clear its transactions and service its customers.
Its customers include Gupta-linked companies Sahara Computers‚ VR Laser‚ Koornfontein Mines‚ Oakbay Investments‚ Oakbay Resources & Energy‚ Optimum Coal Mines‚ Shiva Uranium and Tegeta.
Cook said it was a “mystery” why Baroda had stayed quiet for two weeks after Nedbank made its decision at the end of January. He argued that Baroda should have included its contract with Nedbank in its court papers.
Bham hit back and said if the Gupta-linked companies wanted this kind of information‚ they should have added Nedbank as a respondent in their urgent application. He criticised the Gupta-linked companies for “finger-pointing” and insinuating that Baroda and Nedbank had colluded with one another.
Cook claimed Baroda wanted to withdraw from South Africa‚ because of the “adverse” publicity the Guptas and their companies had received.
Cook added that Baroda should have spoken to Nedbank about its predicament. Bham said it was a situation beyond Baroda’s control.
Baroda informed the Gupta-linked companies on July 6 last year that it was ending its relationship with them. Bham said the Gupta-linked companies artificially created the urgency of their application by not finding another bank and relying on a judgment that Judge Tati Makgoka had delivered in October last year.
Makgoka ordered Baroda to continue providing banking services to the Gupta-linked companies to protect their 7‚000 employees. He also prohibited the bank from ending its relationship or closing the bank accounts of the Gupta businesses.
The Gupta-linked companies argued that if Baroda left South Africa‚ it would contravene the judgment.
Baroda CEO Manoj Jha said in his answering affidavit that over R100-million contained in bank accounts that belonged to the Gupta family‚ their associates and companies - which the National Prosecuting Authority (NPA) Asset Forfeiture Unit (AFU) froze in relation to the Estina dairy farm - would be placed in a trust with Standard Bank.
Other funds‚ including the R2-billion rehabilitation funds for Optimum and Koornfontein which were frozen by a court order obtained by the Organisation Undoing Tax Abuse (Outa)‚ and unclaimed deposits by other clients would also be placed in the trust account.
Mavundla said he initially considered dismissing the application based on the prima facie evidence.
“The matter raises‚ in my view‚ the fundamental question: Must the courts oblige banks to stay in the country against their will or business to keep its doors open?”
Judgment has been reserved and will be delivered on March 12.